Justices limit wartime powers

GAIL GIBSON AND SIOBHAN GORMANTHE BALTIMORE SUN

The Supreme Court ruled yesterday that wartime tribunals created to try detainees at Guantanamo Bay are not valid under U.S. law or international treaties, a political and legal blow to the Bush administration's broad claims of executive power that could have far-reaching implications for how it conducts the war on terrorism.

Nearly five years after the first terrorist suspects arrived at the prison camp in Cuba, none of the roughly 700 men who have been held there has stood trial. The court's 5-3 decision ensured that the wait would be longer and that the facility would remain open for now, in spite of calls to close it.

President Bush said yesterday that he would work with Congress to redraft the first military tribunals since World War II, and lawmakers in both parties signaled that they would lend support. Legal analysts and government officials said other options were to try detainees in civilian courts inside the United States or in military court-martials - or to return them to their home countries.

But the much-anticipated decision also raised broader questions about Bush's aggressive anti-terrorism policies and efforts to expand executive powers. At turns, it appeared to undercut the administration's justification for aggressive interrogation techniques as well as its defense of the National Security Agency's program of warrantless surveillance inside the United States.

"The Supreme Court didn't specifically tell the president that he had to comply with [Geneva Conventions protections] outside the boundaries of military commissions, but it was clearly a bowshot," said Scott L. Silliman, a retired Air Force attorney who serves as executive director of the Center on Law, Ethics and National Security at Duke University.

The court split, 5-3, in the case of Salim Ahmed Hamdan, a one-time driver for al-Qaida leader Osama bin Laden. The majority opinion was written by the court's most senior and most liberal member, Justice John Paul Stevens, with the deciding vote coming from moderate Justice Anthony M. Kennedy.

Chief Justice John G. Roberts Jr. did not participate in the case. He had ruled in the government's favor last year when the case came before him on a lower court.

In finding that Bush had overstepped his authority in creating military commissions that sharply curtailed basic trial rights, such as allowing the accused to be present throughout his trial, the majority decision suggested repeatedly that the cure to the problem could come from Congress.

"No emergency prevents consultation with Congress; judicial insistence upon that consultation does not weaken our nation's ability to deal with danger," Justice Stephen G. Breyer wrote in a concurring opinion. "The Constitution places its faith in those democratic means. Our court today simply does the same."

In its ruling, the court did not summarily reject the use of wartime tribunals, which have been used across U.S. history - although not since the World War II-era trials of eight German agents sent to the United States with a failed mission to destroy war factories, canals, bridges and train stations.

And Stevens pointedly noted that the court was not challenging the government's authority to hold Hamdan "for the duration of active hostilities," a murky deadline in the current conflict, which could stretch for decades without a clear end.

Bush said yesterday that "we take the findings seriously" and suggested that he would turn to Congress for help in crafting new military commissions that would conform with the ruling.

"To the extent that there is latitude to work with the Congress to determine whether or not the military tribunals will be an avenue in which to give people their day in court, we will do so," the president said.

Lawmakers appeared willing to help. Leaders on the Senate Armed Services Committee said it would hold hearings on the issue soon. Senate Judiciary Committee Chairman Arlen Specter, a Pennsylvania Republican, promptly introduced the "Unprivileged Combatant Act" to establish new tribunals. And Specter's Democratic counterpart on the panel, Sen. Patrick J. Leahy of Vermont, agreed that Congress should get involved.

"We need to refocus on our priorities and get the war on terror back on a lawful and constitutional footing," Leahy said.

The court's decision met sharp criticism from conservative legal scholars and the three dissenters - Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas, who warned that the decision was a dangerous intrusion on the president's power to wage war. Thomas, usually silent in open court, took the rare step of reading part of his dissent from the bench.

The ruling, Thomas said, would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

Douglas W. Kmiec, a Pepperdine University law professor who served in the Justice Department under President Ronald Reagan, said the ruling demonstrated that "the court has simply failed to grasp that we are at war."

But administration critics said the outcome was an important check of presidential powers. Michael Ratner, president of the Center for Constitutional Rights, which represents many of the Guantanamo detainees, said that by invoking protections under a key provision of the Geneva Conventions - Common Article 3 - the decision would have broad ramifications for the U.S. treatment of terrorist suspects.

"What this says to the administration is you can no longer decide, arbitrarily, what you want to do with people - you have to abide the dictates of the Geneva Conventions' Common Article 3," Ratner told reporters.

The court's holding that the provision should apply drew considerable attention from appellate lawyers and legal scholars. Writing for the majority, Stevens noted that it requires that individuals prosecuted for war crimes must face "regularly constituted courts" that afford widely recognized judicial guarantees. But it also holds that detainees should "in all circumstances be treated humanely" and prohibits acts of "cruel treatment and torture."

In its majority decision, the court also rejected the government's argument that the president's authority to create the military commissions stemmed from Congress' approval in September 2001 to use military force against the perpetrators of the terrorist strikes on New York and the Pentagon. Although not addressed in yesterday's decision, the government has made the same assertion in defense of the NSA warrantless surveillance program.

There is nothing in the history of that congressional action "even hinting" at the kind of expansion of presidential authority inherent in the military commissions, Stevens wrote.

The focus yesterday for government lawyers was what comes next for the 10 detainees at Guantanamo Bay who have been charged with war crime offenses, and the other 40 to 80 detainees who also could face military commissions. Senior administration officials, who spoke on the condition of anonymity, said justice and defense officials were reviewing all possibilities but appeared likely to seek help from Congress to re-create the commissions.

Carl Tobias, a law professor at the University of Richmond who has written about terrorist prosecutions, said that the government probably is reluctant to go to civilian court and risk the kind of legal spectacle that accompanied its prosecution this year of convicted Sept. 11 conspirator Zacarias Moussaoui.

But University of Maryland law professor Michael Greenberger, a top counterterrorism official during the Clinton administration, said trials could proceed without changing current law.

"For those who have really violated the law of war, they could quickly get convictions in public court-martial proceedings and accomplish that objective," Greenberger said. "And if they believe that there are those that they fear to be dangerous but can't prove it, they can keep them off the streets by holding them under prisoner-of-war status. They get nice treatment, but they're not free - they're imprisoned.

"The one hindrance is it would make interrogation more difficult, but I think the interrogation value of these people has long since passed by."